Laurens v. Volvo Cars of North America, LLC et al
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/8/2017:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
XAVIER LAURENS and KHADIJA
LAURENS, Individually and on
Behalf of All Others
Case No. 16 C 4507
Judge Harry D. Leinenweber
VOLVO CARS OF NORTH
AMERICA, LLC, a Delaware
Corporation, and VOLVO CAR
USA, LLC, a Delaware Limited
MEMORANDUM OPINION AND ORDER
As described by the Seventh Circuit Court of Appeals, “[t]his
Laurens v. Volvo Cars of North America, LLC, 868
F.3d 622, 623 (7th Cir. 2017).
This Court had previously granted
before the Seventh Circuit reversed, finding that the claims were
indeed not moot, and remanded the case.
In addition to their Rule
(“VCNA”) and Volvo Cars USA, LLC (“VCUSA”), had also filed a Rule
12(b)(6) Motion to Dismiss for failure to state a claim.
the Court had found a lack of jurisdiction based on mootness, it
did not reach the alternative grounds for dismissal.
now considers Defendants’ Rule 12(b)(6) Motion.
This dispute centers on the mileage capability of the Volvo
Model XC90 T8, a plug-in hybrid sport utility vehicle capable of
being operated solely on battery power.
placing an order for the T8.
Plaintiffs, Xavier and
These releases stated that “at the
push of a button the driver can switch to quiet and emission-free
city driving on pure electric power where the range will be about
“In this mode, when the high-voltage battery is
fully charged, it serves as the car’s sole energy source, powering
the electric motor over the rear axle.
The XC90 T8 has a range of
more than 40 km using just electricity, which covers the total
distance most people drive in one day.”
(Pls’ Ex. 2.)
releases, a T8 new car brochure, and written information gained
normal driving conditions would achieve at least 40 kilometers (or
its mileage equivalent of 25 miles) on a single charge.
Exs. 3, 4, 5, and 6).
Plaintiffs claim that they relied on this
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information when they decided to order the T8 (which commanded a
$20,000 premium over the non-hybrid CX 90), when they made a down
payment of $1,000, and again eight months later when they paid the
$83,495.00 balance due.
Plaintiffs claim that they purchased the
savings.” (ECF No. 22 (“FAC”) ¶ 41.)
Plaintiffs found that it was only able to travel 8 to 10 miles on
a single electric charge.
Due to this discrepancy between the
unable to operate the car in normal daily travel without using
They returned the T8 to their Volvo dealer so that the
The dealer initially pointed out to them that the
“sticker” on the new Volvo claimed that the T8 had only a 13-mile
electric driving range rather than the 25-mile range promised in
the advertising material.
The dealer than sought to test drive
the T8 but was only able to travel 10 miles in electric mode under
driving at no more than 40 mph, with all safety features and the
heat turned off, and was able to achieve a distance of between 14
and 18 miles.
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Fraud; Count III, Breach of Express Warranty; and Count IV, Unjust
They bring all four counts on behalf of a national
class of buyers of the Volvo T8.
Defendants have moved to dismiss
for failure to state a claim under Rule 12(b)(6).
Counts I and II against Both Defendants
Defendants contend that neither the CFA nor the common law
fraud count can stand because Plaintiffs have failed to allege a
Defendants cite Wiegel v. Stork Craft Mfg.,
proposition that accurate statements cannot form the basis of a
accuracy of their advertising materials.
First, they point out
that the press release in Exhibit 1 sets forth a parenthetical
phrase “NEDC driving cycle” in the paragraph immediately preceding
intended to modify the distance claim.
Second, they point out
that their advertising states the range in kilometers rather than
Third, they spotlight to what they assert is a disclaimer
“Descriptions and facts in this press material relate to VolvoCar
Group’s international car range,” and “Vehicle specifications may
vary from one country to another and may be altered without prior
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Thus, they say, Plaintiffs were on notice that the
release really did not invite a buyer to rely on the statement
that “the range will be around 40 kilometers.”
how the NEDC testing methods differ from the EPA methods, which
they claim could account for the discrepancy, and they then fault
Plaintiffs for failing to allege in their complaint that the NEDC
testing results were false.
Plaintiffs, of course, take issue with these arguments as to
They point out that Defendants ignore all of the
marketing materials that Defendants issued in the United States to
entice consumers to buy the T8.
(See, Exhibits 1 through 6.)
Plaintiffs’ Volvo dealer was unable to come close to matching.
They also point out that it does not take a genius to convert 40
kilometers to 25 miles.
It appears to the Court at this stage of the case that the
Plaintiffs have the better of the argument on Counts I and II.
First, all of the cases Defendants cite concerning the truth of
stage or after trial.
This is particularly important here because
at this stage prior to discovery, Plaintiffs are not privy to the
NEDC testing so as to prove or disprove if and why the European T8
model - as opposed to the one available to purchasers in the
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United States - could truly go 40 kilometers without a recharge.
Further, the press releases do not state that the 40-kilometer
distance was obtained through the “NEDC driving cycle,” or even
what the NEDC driving cycle is.
This parenthetical phrase is
located in a paragraph regarding reduced emissions and does not
statement is located at the very end of the release and refers to
the “VolvoCar Group’s international car range” without defining
what this means.
Fairly read, “international car range” appears
to refer to the fact that certain option features may not be
universally available and does not even apply at all to electric
“specifications” vary from one country to another appears to refer
to possible variations implicated by climate and local regulations
neither contradicts nor modifies the 40-kilometer mileage claim.
Defendants also contend that the fraud and CFA counts should
be dismissed pursuant to the heightened pleading standards of Rule
Defendants are partially correct.
While Rule 8 applies to
Count I under the CFA for unfair conduct or practices, Rule 9(b)
Fabricators & Supply, Inc. v. CIT Tech. Financing Servs., Inc.,
536 F.3d 663, 670 (7th Cir. 2008).
Consequently, with respect to
Count I, the only question is whether “the allegations raise a
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However, Count II requires the Rule 9(b) “who, what,
when, where, and how.”
(7th Cir. 1990).
DiLeo v. Ernst & Young, 901 F.2d 624, 627
With respect to VolvoUSA, whose name is on the
press release, Plaintiffs appear to have satisfied Rule 9(b).
example, VolvoUSA is the “who”; the claim that the T8 will go 40
kilometers on a single charge is the “what”; October 21, 2014, the
date of the press release in Ex. 1, is the “when”; the United
States, where the press release was published, is the “where”; and
disseminating the press release in the United States is the “how”.
However, the Complaint fails to satisfy Rule 9(b) with regard to
Plaintiffs claim that VCNA can be held liable because of
its corporate affiliation with VCUSA (it was VCUSA’s sole member).
However, this is not sufficient under Rule 9(b).
Goren v. New
Vision Int’l, Inc., 156 F.3d 721, 730 (7th Cir. 1998) (finding it
necessary to allege “facts sufficient to notify the defendants of
their purported role in the scheme”) (quotation omitted).
Count III - Breach of Express Warranty against VCUSA
Count III alleges that, by asserting in press releases and
advertising materials that the T8 would achieve 25 miles on a
single charge, VCUSA created an express warranty that was violated
with respect to Plaintiffs’ T8.
To create an express warranty
under Section 2-313 of the Illinois Commercial Code (26 ILCS 2- 7 -
313), a seller must (1) make an affirmation of fact or promise
that (2) relates to the goods and (3) becomes part of the basis
for the bargain between the parties.
The seller warrants that the
goods will conform to the affirmation of fact or promise.
seller’s statement of opinion or commendation, on the other hand,
does not create an express warranty.
The difference is whether
Royal Business Machines, Inc. v. Lorraine Corp., 633 F.2d
34, 42 (7th Cir. 1980).
Whether a seller made a promise amounting
to a warranty is normally a question of fact.
“promise” that a driver would be able to drive 25 miles on a
single charge is subject to proof and could therefore constitute
an express warranty.
If, in fact, the T8 could only achieve 8 to
10 miles, as opposed to 25, this could be considered a violation
of an express warranty, and the allegation clearly rises above the
Count IV - Unjust Enrichment against VCUSA
enrichment claim is their argument that Plaintiffs have not been
able to allege a claim under the CFA.
Insofar as the Court has
not dismissed the CFA claim, the Motion to Dismiss is denied in
Leiner v. Johnson & Johnson Consumer Companies,
Inc., 215 F.Supp.3d 670, 673 (N.D. Ill. 2016).
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For the reasons stated herein, the Court rules as follows:
The Motion to Dismiss Count I is denied as to VCUSA but
granted as to VCNA without prejudice;
The Motion to Dismiss Count II is denied as to both
The Motion to Dismiss Count III is denied; and
The Motion to Dismiss Count IV is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: November 8, 2017
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